(RPC) - 3/11/2015 - The American Civil Liberties Union has filed a new lawsuit against the National Security Agency on behalf of multiple plaintiffs. At issue is the agency's practice of conducting "upstream surveillance," and the broad scope of the FISA Amendments Act of 2008, which the ALCU says violates both the U.S. Constitution and the reasonable expectation of privacy that average citizens and others who rely on confidential, secure communications have.
The suit asks that the practice of upstream surveillance be declared unlawful and stopped immediately, and that the government be required to purge all information from its databases with respect to the plaintiffs.
Plaintiffs include the Wikimedia Foundation, The National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, PEN American Center, Global Fund for Women, The Nation Magazine, The Rutherford Institute, and The Washington Office on Latin America.
“Upstream surveillance, which the government claims is authorized by the FISA Amendments Act of 2008, is designed to ensnare all of Americans’ international communications, including emails, web-browsing content, and search engine queries,” the ACLU states. “It is facilitated by devices installed, with the help of companies like Verizon and AT&T, directly on the internet 'backbone' – the network of high-capacity cables, switches, and routers across which Internet traffic travels.”
The complaint, dated March 10, 2015, challenges what it says is “the suspicionless seizure and searching of internet traffic by the National Security Agency (NSA) on U.S. Soil,” putting in jeopardy billions of sensitive international communications conducted each year by various educational, legal, human rights and media organizations – effectively undermining their ability to conduct activities which are crucial to their missions.
Defendants named in the suit include the Fort Meade, Maryland-based National Security Agency/Central Security Service, NSA Director Michael S. Rogers, the Defendant Office of the Director of National Intelligence (ODNI), Director of National Intelligence James R. Clapper, the Department of Justice, and U.S. Attorney General Eric H. Holder.
While the Foreign Intelligence Surveillance Act was enacted in 1978, it has undergone numerous amendments over the years, one of the latest of which was the FISA Amendments Act (FAA) signed by former President George W. Bush on July 10, 2008.
“The FAA radically revised the FISA regime that had been in place since 1978, by authorizing the acquisition without individualized suspicion of a wide swath of communications, including U.S. persons' international communications, from companies inside the United States,” the complaint states.
The act prohibits the specific targeting of U.S. citizens, but is defined so broadly the plaintiff's say that just about any type of communication by citizens (corporations and associations included) outside the country is fair game.
As stated in the suit: “Thus, though the FAA is nominally concerned with the surveillance of individuals and groups outside the United States, it has far-reaching implications for U.S. persons' privacy. The targets of FAA surveillance may include journalists, academic researchers, human rights defenders, aid workers, business persons, and others who are not suspected of any wrongdoing. In the course of FAA surveillance, the government may acquired the communications of U.S. citizens and residents with all of these persons.”
Other concerns expressed in the complaint:
-- Upstream surveillance does not share the same limitations as that of standard NSA targets, but essentially involves a fishing expedition by collecting and storing all international communications by everyone in order to filter them through a set of search terms for review and potentially further surveillance.
-- Although so-called targeting and minimization procedures are in place to limit how data is used, those procedures are very permissive and filled with exceptions, that allow the NSA to retain anything it collects for a period of up to three years, or indefinitely if such communications are encrypted.
“The interception, copying, and review of Plaintiffs' communications while in transit is a violation of plaintiffs' reasonable expectation of privacy in those communications. It is also a violation of plantiffs' right to control those communications and the information they reveal and contain,” the suit states.
The complain cites action by the government in 2013, as noted by the director of national intelligence, where 89,138 individuals, groups and organizations were targeted for surveillance under a single court order; in addition to the collection of 150 million internet communications in 2011 alone under the FAA.
ACLU Staff Attorney Patrick Toomey cites a quoted comment made by former NSA Director Michael Hayden, who stated: “Let me be really clear. NSA doesn't just listen to bad people. NSA listens to interesting people. People who are communicating information,” as evidence that there are very few limitations on the agency's spying activities.
“The fact that upstream surveillance is supposedly focused on international communications is hardly a saving grace. Americans spend more and more of their lives communicating over the Internet – and more and more of those communications are global in nature, whether we realize it or not,” Toomey writes. “An email from a woman in Philadelphia to her mother in Phoenix might be routed through Canada without either one knowing it. Similarly, companies like Microsoft and Google often store backup copies of their U.S. customers' emails on servers overseas, again with hardly anyone the wiser. The NSA is peeking inside virtually all of these.”
Toomey criticizes the practice of upstream intelligence gathering as something that flips the Constitution on its head.
“It allows the government to search everything first and ask questions later, making us less free in the process,” Toomey writes. “Our suit aims to stop this kind of surveillance.”